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Lord Clinton-Davis: This is a very interesting debate. Serious charges are made by a number of noble Lords about the purpose of the clause and the Government's purpose. They have been charged with attempting to remove the supervision of the courts over the legality of decisions to return asylum seekers to other EU countries. Is there any justification in that charge? Is that the purpose that is underwritten in Clause 9? How will the situation affect the Court of Appeal, which is about to reach a decision on this issue? It is also alleged that it inhibits or pre-empts the development of common criteria supervised by the European Court of Justice for determining asylum claims at EU level.

Those are serious matters which go to the heart of our respect for the law. I am sure that my noble friend would wish to deny that, presumably with convincing arguments in support of that denial. How does it affect our responsibilities under the United Nations Convention on Refugees? I do not know. On the basis of the arguments so far adduced in this debate, I have not made up my mind as to whether or not those grave charges have been made out. But if there is anything to them, I shall listen with great interest to the response of my noble friend to those claims.

This is an issue which has not previously been seriously addressed, unless I have missed something; but those assertions have been made in the Committee tonight. As somebody who has taken a keen interest in civil liberties throughout my parliamentary career, I hope that my noble friend is able show that either the charges are ill-founded or, if there is any scintilla of doubt about that, how the Government propose to react to them.

9.15 p.m.

Lord Alton of Liverpool: During the debates that preceded the passage of the 1996 Act, the Standing Committee considered in great detail two charges which the then Opposition--now the Government--levelled at the then administration. One of those charges was that they were constantly trying to wriggle out of obligations under the law and to minimise opportunities for judicial review. So, like the noble Lord, Lord Clinton-Davis, and earlier the right reverend Prelate the Bishop of Ripon, I was concerned to see that during the Third Reading debate Mr Mike O'Brien, for whom I have considerable personal regard, was on record as saying that the purpose of new Clauses 9 and 10 was to make transfers under the Dublin Convention less vulnerable to judicial review.

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That was an unfortunate sentiment--to put it at its most charitable--for the Minister in another place to express. It gives the impression that we are simply trying to wriggle out of opportunities for people to have their rights under law and to challenge decisions which they feel are unjust. To give the impression that we are trying to remove protection and to minimise scrutiny would in itself be extremely unfortunate for this Government, above all governments. I hope therefore that the Minister will reconsider that phrase and see whether he can give us a better interpretation than that which has thus far been placed upon it.

The other charge made in the proceedings before 1996 by the then Opposition was that the Government were trying to evade their international responsibilities. That has echoes again not least in the remarks of the noble Baroness, Lady Williams of Crosby. She and her noble friend, the noble Earl, Lord Russell, rightly reminded us of the 1951 UN Convention on the Status of Refugees and the 1967 protocol that followed from that. It is worth recalling the circumstances in which the 1951 convention was made. The countries that we are now saying are safe countries to which to send refugees were the countries with which the convention was drawn up to deal because of the offences they had committed in the whole area of abuse of human rights in the period that led to the Second World War.

Circumstances change, and the noble Baroness was right to remind us of the shifting sands. I should like directly to ask the Minister whether there have been valid applications by refugees who have resisted attempts to return them to the Czech Republic and to Poland because they have been Romany gypsies, and certainly whether there would be many valid applications by Kurds, Syrianese, Chaldeans and others who would resist any attempt to return them to Turkey. Turkey is not currently being considered for membership of the European Union, but has expressed its wish in due course to be so considered, and certainly the Czech Republic and Poland are being considered. In those circumstances, can we honestly say that those are countries which it would be legitimate to draw into this net in this way?

So, Clause 9 and in due course Clause 10 raise certain issues which this Committee should consider. It is proper that Members should put a flag in the sand at this stage. I hope that the Minister will be able to address the two principal questions which were well rehearsed in the period prior to the 1996 Act, which this legislation is not doing anything to address and which probably makes a bad situation worse.

Lord Phillips of Sudbury: Nothing does greater honour to the courts and legal system of this country than the manner in which it has traditionally dealt with asylum seekers. In the extremely difficult balance that has always to be struck between administrative and bureaucratic needs, and convenience and the requirements of justice, I find it hard to believe that Clause 9 gets it right. I cannot imagine the Parliament of 1628, the Long Parliament, the Parliament in 1688 or any other great libertarian Parliament since

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contemplating a measure that assumes a state of fact vis-a-vis a number of friendly states that may not in fact prevail.

Clause 9(1)(a) contains not a rebuttable presumption, but a series of unrebuttable assumptions that a person's life and liberty are,


    "not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion".

At the end of the 20th century, the world is in turmoil and dreadful things are being done on our continent. Our society is blessed with a degree of affluence and sophistication of legal process to which few others can aspire. I find it extraordinary that the Government should contemplate a measure such as this, for all the difficulties that they face.

Perhaps it is easy for those of us who are not Ministers grappling with the realities of such matters to underestimate how complex, trying and expensive they are. But however complex, trying and expensive, I do not believe that Clauses 9 or 10 are in the best tradition of this House or country.

I beg the Government to reconsider the plight in which some asylum seekers find themselves. The reply given by Mr Michael O'Brien to non-governmental organisations that are passionately opposed to Clauses 9 and 10, in his letter of 9th June, is not sustainable:


    "Asylum seekers' representatives do not find it difficult to persuade a judge to grant leave for a judicial review hearing by pointing to what they say are differences or deficiencies in the procedures of other member states".

I do not know what the noble Lord the Minister thinks of that but, as a practising lawyer, I do not think much of it. It makes a series of assumptions about the whole process of judicial review that are unwarranted. Courts are not easily persuaded. Judges are not soft touches. The courts do give member states a margin of appreciation in refugee convention cases. The threshold for grant of leave to bring in a judicial review is--as the Minister knows because he has done it--relatively high. If the Government's case is succinctly summarised by Mr O'Brien's letter, they are severely mistaken--quite apart from the points so eloquently made by other noble Lords tonight.

The Crown is always in the position of going back to the court where leave to appeal has been granted to get that decision set aside if--as in the cases of Gashi and Aitsegeur, involving the French and Algerian Governments--the Crown, through diplomatic channels, discovers information that ought to have been put. On every possible ground and however difficult the problems with which the Government are grappling, I and others here tonight ask the Government to think again.

The Earl of Sandwich: I want briefly to associate myself with the remarks of the noble Lord, Lord Alton, in support of the noble Baroness, Lady Williams. We would all like to live in the European Union, where we could ensure safety among our close friends and allies. The fact is that we have not reached that point. Any of us who have studied even briefly the Schengen

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proposals and seen how the Government have to decide cannot understand how Clause 9 can pass almost without question.

I have one question to put to the Minister. If the 1951 convention is universal, can he name any precedents for an assumption of safety for a group of countries within those signatories? As I understand it, being universal--and I am not a lawyer--means that all cases are treated individually.

Lord Cope of Berkeley: The question arises as to the definition of "member State". There is no doubt that it means a member state of the EU, but it leads me to ask why there is a difference between Clause 9 and Clause 70 because the latter clause talks in terms of "EEA nationals"; in other words, nationals in a European economic area. It would be interesting to know why these two clauses are different in that respect.

However, that is quite a small point which can, no doubt, be readily responded to, but the big question is whether the proposition which lies behind Clause 9 is correct; namely, that member states of the European Union are "safe" as defined and that that will still be so even as enlargement progresses. We have all read recent newspaper reports about how the new Commission is giving some extra attention to enlargement with a view to making it progress quickly. Obviously that is something of which we are all in favour in this country.

It is interesting to observe that the proposition that member states are safe is being opposed by the noble Baroness, Lady Williams of Crosby, who, generally speaking, has been very supportive of the nature of the other member states of the Community. That renders the point that she has made, and which others have supported, all the more powerful. But the question also is whether or not judicial review is ruled out by this clause, as the Government evidently intend.

I believe that I am correct in saying that the Minister in another place referred not to making these matters invulnerable to judicial review, but "less vulnerable" to it. It is a question of degree. Without any legal backing or personal knowledge, I suspect that that is correct and that judicial review will, so to speak, find a way whatever provision ends up in the Bill. That is a very important point, if one looks at the basic reasons for introducing this clause and other such measures in the Bill.

We all know from the practical point of view that, for very understandable reasons indeed, the Government are seeking to minimise the opportunities for those who would use the system to delay decisions in their cases by every device open to them in the judicial process. They are well advised in these matters and sometimes they have people advising them who are keen to encourage them, for their own reasons, to use every possible judicial process. But, in any case, if you are essentially an economic migrant, you have, by definition, a financial interest in trying to spin it out and win in some part of the legal system which may not be apparent at first sight.

It is highly understandable that the Government and Ministers should wish to minimise the opportunities for delay and misuse of the judicial process because,

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ultimately, that is what it is. However, whether or not that should overtake the misgivings that have been expressed in this debate depends on the facts of the matter. I hope that the Minister can help us by giving us some more of the facts--by which I mean some more of the numbers--with regard to those whose appeals have been found wanting. Earlier the Minister said that 80 per cent of appeals of a certain class were dismissed. That suggests that many of them did not stand much chance in the first place but were nevertheless pursued for other reasons. This section of the Bill seeks to diminish the misuse of the judicial process. I am not unsympathetic to that effort but it has to be balanced by the considerations that have been mentioned in the debate.

9.30 p.m.

Lord Williams of Mostyn: The purpose of Clause 9 is to address the problem which was clearly identified in the White Paper of lengthy, unjustifiable delays to the operation of the Dublin Convention. A number of points have been raised and I shall do my best to deal with them. The noble Earl, Lord Russell, raised the question of the views of the Master of the Rolls in the case of Fayed. It was open to the Secretary of State at the Home Office to appeal. He chose not to and took upon himself the burden--and therefore the duty--of giving reasons. There was plenty of advice available to suggest a successful visit to the Judicial Committee of this House, but he chose not to do that and, as I say, took upon himself the voluntary burden of giving reasons.

The noble Lord, Lord Phillips of Sudbury, said that the test to get leave in judicial review was a high hurdle. I think he said that I had done that. I am sure that the noble and learned Lord, Lord Falconer of Thoroton, has done that. However, I must say that I never found it an extraordinarily high professional hurdle to get that leave. My advice is that my proposed addition to Clause 9 is not incompatible with the 1951 convention. It is important to look at what we are proposing as opposed to the "bogeys" that have been trotted out. I begin--usefully, I hope--with the question put to me most courteously by the noble Lord, Lord Hylton; namely, what is the definition of a member state? I accept that Clause 9 in itself is rather skeletal because it does not need to be fatter.

The Interpretation Act 1978 provides that certain words in statutes carry the meaning in the European Communities Act 1972. Schedule 1 of the 1972 Act-- I entirely accept that this is a perfectly legitimate question when one is looking at Clause 9 on its own--states that "member state" means a member state of the European Community. Therefore the term "member state" in this Bill--in particular Clause 9--means a member state of the European Community. As far as I am aware from my present intelligence, that does not include Poland, the Czech Republic or Turkey. Questions were put about those other jurisdictions but they do not concern the point we are discussing at present. I shall return to the question of enlargement in a moment or two.

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The noble Earl, Lord Russell, asked me why I had signed a certificate of compatibility. The short answer is because I thought that was an accurate, truthful statement to make. A person who is subject to removal under the Dublin Convention will always be able to rely on the Human Rights Act and he will have a right of appeal on ECHR grounds under Clause 55. It is possible for the Secretary of State to certify that an ECHR claim is manifestly unfounded--I refer to Clause 62--but he will do so only where there is blatantly no basis for an ECHR claim. I return to my next point because the suggestion is constantly made, on no basis that I can discover, that we are seeking to wriggle out of judicial control. Any certificate under Clause 62 is judicially reviewable in the usual way. I hope that that meets the proper concern which my noble friend Lord Clinton-Davis raised. It is wrong to say that any regime that we have is not going to be subject to judicial review.

Since the 1996 Act, the Dublin Convention has come into force. Under the Dublin Convention returns of asylum seekers to member states take place only when the receiving state has accepted responsibility for examining the asylum claim, a particular question put to me by the noble Earl, Lord Russell. That is the present situation and there is no reason to think it might be altered. The noble Baroness, Lady Williams of Crosby, asked me about standing arrangements. As relations in the EU change, so the term "standing arrangements" will obviously accommodate wider concepts.

In the background of the question asked by the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Williams of Crosby, was the issue of enlargement. I hope that the noble Lord will not think I am teasing him too much in saying, as I did a moment ago, that Turkey, Poland and the Czech Republic are not members. I am happy to give the reassurance that all candidates to join the European Union are going through a process of bringing their legislation and institutions in certain key areas up to acceptable European standards. Asylum procedures are an important aspect of that. The process is monitored by the EU Council and the Commission. Present member states are actively engaged in assisting the states concerned to develop their institutions and procedures. Unless they have made sufficient progress they will not be allowed to join the EU.

It is suggested that there may be collusion between the French and Algerian authorities. All I can say is that asylum claims in France are dealt with by the French office for the protection of refugees and those who are stateless. I have never heard it suggested that that was other than an independent, well-respected body.

I return to what we are about here. We are about the avoidance of illegitimate delay. I entirely accept that the question that would then have been put to me by the noble Earl--had I not put it myself and tried to answer it--is what is legitimate delay. It is a decent balance, I hope, between the efficient conduct of asylum claims and the fact that sometimes the processes are simply distorted.

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Perhaps I may return to the point raised by my noble friend Lord Clinton-Davis and the trouble that the assertions about trying to evade judicial supervision and oversight had caused in his mind. It is plain on the face of Clause 9 that removal may not proceed if there is an appeal outstanding, the possibility of such an appeal or, indeed, a successful appeal in respect of a person's human rights claim, subject only to certain limitations under Clause 62.

I hope that that demonstrates that some of the assertions made are difficult to reconcile with what we are saying in Clause 9 and what is actually happening in the context of the European Union at the moment.


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